TERMINATION AGREEMENT AND MUTUAL RELEASE

TERMINATION AGREEMENT AND MUTUAL RELEASE
Dated as of November 30, 2023
by and among
HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT,
HALCYON ACQUISITION SUB, INC.,
and
VECTRIS PHOTONICS, INC.
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This TERMINATION AGREEMENT AND MUTUAL RELEASE (this "Agreement") is entered into as of November 30, 2023 (the "Effective Date"), by and among:
(1) Halcyon Semiconductor Aktiengesellschaft, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, registered with the Munich commercial register (Handelsregister des Amtsgerichts München) under HRB 178254, with its principal offices at Halcyon-Platz 1, 81739 München, Germany ("Parent" or "Halcyon");
(2) Halcyon Acquisition Sub, Inc., a corporation organized and existing under the laws of the State of Delaware (File No. 7634291) and a wholly owned subsidiary of Halcyon, with its registered office at c/o Pinnacle Corporate Services, Inc., 1209 Orange Street, Wilmington, Delaware 19801 ("Merger Sub"); and
(3) Vectris Photonics, Inc., a corporation organized and existing under the laws of the State of Delaware (File No. 5918437), with its principal offices at 4750 Ridgepoint Drive, Suite 300, San Jose, California 95134 (the "Company" or "Vectris").
Halcyon, Merger Sub, and Vectris are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS:
A. The Merger Agreement. Halcyon, Merger Sub, and Vectris entered into that certain Agreement and Plan of Merger, dated as of August 10, 2023 (as may have been amended, supplemented, or otherwise modified prior to the date hereof, the "Merger Agreement"), pursuant to which, among other things, Merger Sub would merge with and into Vectris in a reverse triangular merger effected under the Delaware General Corporation Law, Title 8 of the Delaware Code (the "DGCL"), with Vectris surviving as a wholly owned subsidiary of Halcyon (the "Merger"), for aggregate cash consideration of Eight Hundred Million Dollars ($800,000,000), representing approximately $13.70 per share of Vectris common stock on a fully diluted basis of 58,394,160 shares. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement.
B. Ancillary Agreements. In connection with the execution and delivery of the Merger Agreement, the Parties and certain other parties entered into various ancillary agreements to facilitate the consummation of the Merger and the transactions contemplated by the Merger Agreement, including, without limitation:
(i) that certain Voting and Support Agreement, dated as of August 10, 2023 (the "Support Agreement"), by and among Halcyon, Dr. Anand Raghavan (in his capacity as a stockholder of Vectris), Granite Peak Ventures Fund IV, L.P., and Nordhaven Capital Partners III, L.P., pursuant to which such stockholders agreed, among other things, to vote their shares of Vectris common stock in favor of the adoption of the Merger Agreement and the approval of the Merger; and
(ii) that certain Escrow Agreement, dated as of August 10, 2023 (the "Escrow Agreement"), by and among Halcyon, Vectris, and Ironclad National Bank, N.A., as escrow agent, establishing the terms and conditions under which certain portions of the merger consideration would be held in escrow following the closing of the Merger to satisfy potential indemnification claims and purchase price adjustments.
The Merger Agreement was subject to certain conditions to closing, including, among others, the receipt of all required antitrust and regulatory approvals as more particularly set forth in Section 7.1(c) of the Merger Agreement (the "Antitrust Condition").
C. Regulatory Proceedings. Following the execution of the Merger Agreement, the Parties undertook the following actions with respect to regulatory filings and proceedings:
(i) On August 18, 2023, Halcyon filed a premerger notification and report form pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), with the United States Federal Trade Commission (the "FTC") and the Antitrust Division of the United States Department of Justice (the "DOJ").
(ii) On August 25, 2023, Halcyon filed a Form CO notification with the European Commission pursuant to Council Regulation (EC) No. 139/2004 (the "EU Merger Regulation" or "EUMR"), which notification was assigned Case No. M.11247.
(iii) On September 15, 2023, the DOJ issued a Second Request (in the form of a Civil Investigative Demand) in connection with the proposed Merger, seeking extensive additional documentary and testimonial materials from the Parties.
(iv) On October 6, 2023, the European Commission determined, pursuant to Article 6(1)(c) of the EUMR, to initiate a Phase II in-depth investigation into the proposed transaction (Case M.11247), citing preliminary concerns regarding horizontal overlaps in the silicon photonics and advanced optical transceiver markets within the European Economic Area.
(v) On October 30, 2023, the DOJ filed a civil antitrust complaint in the United States District Court for the District of Columbia captioned United States of America v. Halcyon Semiconductor Aktiengesellschaft and Vectris Photonics, Inc., Case No. 1:23-cv-03187 (D.D.C.) (the "DOJ Action"), seeking to enjoin the consummation of the Merger on the grounds that the proposed transaction would substantially lessen competition in the markets for silicon photonics components and coherent optical transceiver modules in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.
D. Decision to Terminate. The Aufsichtsrat (Supervisory Board) of Halcyon, chaired by Prof. Dr. Friedrich Wendt, convened a special meeting on November 20, 2023, during which the Aufsichtsrat considered the status of the regulatory proceedings described in Recital C, the recommendation of the Vorstand (Management Board) of Halcyon, and the advice of Halcyon's outside legal counsel, Calderwood & Harkness LLP, and its financial advisor, Ridgeline Partners LLC. Following such deliberations, the Aufsichtsrat authorized the Vorstand to terminate the Merger Agreement in accordance with its terms. Section 8.1(d) of the Merger Agreement provides that either Party may terminate the Merger Agreement if the required antitrust approvals have not been obtained and cannot reasonably be expected to be obtained by the Outside Date (defined in the Merger Agreement as March 10, 2024, subject to automatic ninety (90)-day extension to June 10, 2024, if the Antitrust Condition is the sole unsatisfied closing condition as of the initial Outside Date). Halcyon has determined, following consultation with Calderwood & Harkness LLP and Ridgeline Partners LLC, and in light of the DOJ Action and the European Commission Phase II investigation, that the Antitrust Condition cannot reasonably be expected to be satisfied prior to the Outside Date (as it may be extended).
E. Reverse Break-Up Fee. Pursuant to Section 8.3(b) of the Merger Agreement, upon termination of the Merger Agreement by Halcyon pursuant to Section 8.1(d) thereof, Halcyon is obligated to pay to Vectris a reverse break-up fee in the amount of Twenty-Eight Million Dollars ($28,000,000), representing approximately 3.5% of the aggregate deal value (the "Reverse Break-Up Fee"). The Parties acknowledge that the Reverse Break-Up Fee constitutes a genuine and reasonable pre-estimate of the damages and costs that Vectris would incur as a result of the termination of the Merger Agreement under the circumstances described herein, and is not a penalty.
F. Purpose. The Parties desire to (i) confirm the termination of the Merger Agreement and all related Ancillary Agreements (other than with respect to certain surviving obligations as set forth herein), (ii) provide for the payment of the Reverse Break-Up Fee, (iii) grant mutual releases of claims arising out of or relating to the Merger Agreement and the transactions contemplated thereby, and (iv) address certain other matters relating to the unwinding of the proposed transaction, all as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the payment of the Reverse Break-Up Fee and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
"Agreement" means this Termination Agreement and Mutual Release, including all exhibits and schedules attached hereto, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with Section 10.6.
"Ancillary Agreements" means, collectively, the Support Agreement, the Escrow Agreement, and each other agreement, instrument, certificate, or document entered into by any of the Parties or their affiliates in connection with the Merger Agreement or the transactions contemplated thereby.
"DOJ Action" means the civil antitrust action captioned United States of America v. Halcyon Semiconductor Aktiengesellschaft and Vectris Photonics, Inc., Case No. 1:23-cv-03187, pending in the United States District Court for the District of Columbia.
"Effective Date" means November 30, 2023.
"Escrow Agreement" has the meaning ascribed to such term in Recital B.
"Halcyon Releasees" has the meaning ascribed to such term in Section 4.2.
"Halcyon Releasors" has the meaning ascribed to such term in Section 4.1.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of August 10, 2023, by and among Halcyon, Merger Sub, and Vectris, as may have been amended, supplemented, or otherwise modified prior to the Effective Date.
"Outside Date" means March 10, 2024, subject to automatic extension to June 10, 2024, under the conditions specified in Section 8.1(d) of the Merger Agreement.
"Released Claims" has the meaning ascribed to such term in Section 4.1.
"Reverse Break-Up Fee" means the sum of Twenty-Eight Million Dollars ($28,000,000).
"Reverse Break-Up Fee Payment Date" means December 15, 2023.
"Support Agreement" has the meaning ascribed to such term in Recital B.
"Surviving Obligations" has the meaning ascribed to such term in Section 3.1.
"Termination" means the termination of the Merger Agreement as contemplated by Section 2.1 hereof.
"Vectris Releasees" has the meaning ascribed to such term in Section 4.1.
"Vectris Releasors" has the meaning ascribed to such term in Section 4.2.
Section 1.2 Merger Agreement Definitions. All capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. In the event of any conflict between the definitions set forth in this Agreement and those set forth in the Merger Agreement, the definitions set forth in this Agreement shall control.
ARTICLE II
TERMINATION OF MERGER AGREEMENT AND ANCILLARY AGREEMENTS
Section 2.1 Termination of the Merger Agreement.
(a) The Parties hereby confirm and acknowledge that the Merger Agreement is terminated effective as of the Effective Date, pursuant to Section 8.1(d) thereof (the "Antitrust Termination Right"), as a result of the failure to obtain the required antitrust approvals from the DOJ and the European Commission and Halcyon's determination that such approvals cannot reasonably be expected to be obtained by the Outside Date (as it may be extended). Halcyon delivered a written Notice of Termination to Vectris on November 30, 2023, in accordance with Section 8.1(d) and Section 9.4 (Notices) of the Merger Agreement. A reference copy of such Notice of Termination is attached hereto as Exhibit A.
(b) From and after the Effective Date, the Merger Agreement shall have no further force or effect with respect to any Party, and all rights and obligations of the Parties thereunder shall terminate, except with respect to (i) the Surviving Obligations as set forth in Section 3.1 hereof, and (ii) any obligations expressly set forth in this Agreement.
(c) Each Party hereby acknowledges and agrees that the Termination is effective and irrevocable, and that no Party shall have any right to revoke, rescind, or challenge the Termination or to compel the other Parties to consummate the Merger or any of the other transactions contemplated by the Merger Agreement.
Section 2.2 Termination of Support Agreement.
(a) The Voting and Support Agreement, dated as of August 10, 2023, by and among Halcyon, Dr. Anand Raghavan, Granite Peak Ventures Fund IV, L.P., and Nordhaven Capital Partners III, L.P. is hereby terminated in its entirety as of the Effective Date. From and after the Effective Date, the Support Agreement shall have no further force or effect, and each party thereto is hereby released from all obligations, covenants, agreements, representations, and warranties set forth therein.
(b) Halcyon shall, promptly following the execution of this Agreement, deliver written notice to each of Dr. Anand Raghavan, Granite Peak Ventures Fund IV, L.P., and Nordhaven Capital Partners III, L.P. confirming the termination of the Support Agreement.
Section 2.3 Termination of Escrow Agreement.
(a) The Escrow Agreement, dated as of August 10, 2023, by and among Halcyon, Vectris, and Ironclad National Bank, N.A. (the "Escrow Agent"), with Thomas Hargreaves serving as the designated escrow officer, is hereby terminated as of the Effective Date. From and after the Effective Date, the Escrow Agreement shall have no further force or effect, and each party thereto is released from all obligations, covenants, agreements, representations, and warranties set forth therein.
(b) The Parties acknowledge and confirm that, because the closing of the Merger did not occur, no funds were deposited into escrow with the Escrow Agent. Accordingly, there are no escrow funds to be disbursed, distributed, or returned to any Party.
(c) The Parties shall deliver, or cause to be delivered, joint written instructions to Ironclad National Bank, N.A. (attention: Thomas Hargreaves, Escrow Officer, One Liberty Plaza, 165 Broadway, New York, New York 10006) confirming the termination of the Escrow Agreement within five (5) business days following the Effective Date. A form of such joint instructions is attached hereto as Exhibit C.
Section 2.4 Termination of Other Ancillary Agreements.
All other Ancillary Agreements entered into by any of the Parties or their affiliates in connection with the Merger Agreement or the transactions contemplated thereby are hereby terminated as of the Effective Date and shall have no further force or effect from and after the Effective Date, except to the extent otherwise expressly provided herein or in such Ancillary Agreements with respect to surviving provisions (including, without limitation, confidentiality and non-disclosure obligations that by their terms survive termination of the applicable Ancillary Agreement).
ARTICLE III
SURVIVING OBLIGATIONS
Section 3.1 Identification of Surviving Provisions.
Notwithstanding the termination of the Merger Agreement pursuant to Section 2.1 hereof, the following provisions of the Merger Agreement shall survive such termination and shall continue in full force and effect in accordance with their respective terms (collectively, the "Surviving Obligations"):
(a) Section 6.5 (Confidentiality). The confidentiality obligations of the Parties set forth in Section 6.5 of the Merger Agreement, including those arising under or with respect to the Confidentiality Agreement dated June 15, 2023, between Halcyon and Vectris (as defined in the Merger Agreement, the "Confidentiality Agreement"), shall survive the Termination for a period of two (2) years following the Effective Date (i.e., until November 30, 2025). During such period, each Party shall continue to treat as confidential all information received from the other Party or its representatives in connection with the proposed Merger, in accordance with the terms and conditions of Section 6.5 of the Merger Agreement and the Confidentiality Agreement.
(b) Section 6.8 (Non-Disparagement). The mutual non-disparagement obligations of the Parties set forth in Section 6.8 of the Merger Agreement shall survive the Termination for a period of two (2) years following the Effective Date (i.e., until November 30, 2025).
(c) Section 6.10 (Cooperation). The Parties' obligations to cooperate with respect to pending regulatory matters, including the DOJ Action (Case No. 1:23-cv-03187, D.D.C.) and the European Commission Phase II investigation (Case M.11247), and any related governmental inquiries, investigations, or proceedings arising from or relating to the proposed Merger, shall survive the Termination and shall continue until the final resolution or dismissal of all such proceedings.
(d) Section 8.3 (Fees and Expenses; Termination Fees). The provisions of Section 8.3 of the Merger Agreement relating to the Reverse Break-Up Fee and the Parties' respective obligations to bear their own transaction expenses shall survive the Termination. For the avoidance of doubt, the payment of the Reverse Break-Up Fee is governed by Article V of this Agreement.
(e) Section 9.1 (Governing Law). The provision of Section 9.1 of the Merger Agreement establishing that the Merger Agreement is governed by and construed in accordance with the laws of the State of Delaware shall survive the Termination with respect to the Surviving Obligations.
(f) Section 9.2 (Jurisdiction). The provision of Section 9.2 of the Merger Agreement establishing the exclusive jurisdiction of the courts of the State of Delaware and the United States District Court for the District of Delaware shall survive the Termination with respect to any disputes arising from or relating to the Surviving Obligations.
(g) Section 9.4 (Notices). The notice provisions of Section 9.4 of the Merger Agreement shall survive the Termination and shall remain applicable to any notices required or permitted to be given in connection with the Surviving Obligations or this Agreement.
(h) Section 9.8 (Entire Agreement). The entire agreement provision of Section 9.8 of the Merger Agreement shall survive the Termination, as modified by this Agreement.
(i) Section 9.12 (Specific Performance). The specific performance provision of Section 9.12 of the Merger Agreement shall survive the Termination; provided, that the Parties' right to seek specific performance of the obligation to consummate the Merger is hereby waived and released, and specific performance shall be available only with respect to the Surviving Obligations and the obligations set forth in this Agreement.
(j) Article IX (General Provisions). The provisions of Article IX of the Merger Agreement shall survive the Termination to the extent necessary to give effect to, and as applicable in connection with, the foregoing surviving sections.
Section 3.2 Return and Destruction of Confidential Information.
(a) Within thirty (30) days following the Effective Date, each Party shall, at the election of the disclosing Party (such election to be communicated in writing within ten (10) days following the Effective Date), either (i) return to the disclosing Party, or (ii) destroy, all confidential information of the disclosing Party that was received by the receiving Party or its representatives in connection with the proposed Merger (including all copies, extracts, summaries, analyses, and other materials prepared by the receiving Party or its representatives that contain, reflect, or are derived from such confidential information).
(b) The obligations set forth in Section 3.2(a) shall be subject to the following customary exceptions:
(i) Confidential information that the receiving Party is required by applicable law, regulation, or order of a court or governmental authority to retain;
(ii) Confidential information retained in accordance with the receiving Party's bona fide document retention and archival policies, including automatic electronic backup systems, provided that such retained information shall continue to be subject to the confidentiality obligations set forth in Section 6.5 of the Merger Agreement and the Confidentiality Agreement; and
(iii) Archived copies of confidential information maintained solely for compliance, audit, or regulatory purposes, provided that access to such copies is restricted to personnel with a need to know and such copies continue to be subject to the confidentiality obligations set forth herein.
(c) Within forty-five (45) days following the Effective Date, each Party shall cause a duly authorized officer of such Party to deliver to the other Party a written certification confirming that such Party has complied with its obligations under this Section 3.2 with respect to the destruction of confidential information (to the extent destruction was elected by the disclosing Party).
Section 3.3 Regulatory Cooperation.
(a) Halcyon shall, at its own cost and expense, take all steps necessary or advisable to withdraw (or cause to be withdrawn) the EUMR Form CO notification (Case M.11247) filed with the European Commission on August 25, 2023, and to cooperate with the European Commission in connection with the administrative closure of the Phase II investigation. Halcyon shall keep Vectris reasonably informed of the progress of such withdrawal and shall provide Vectris with copies of any material correspondence with the European Commission relating thereto.
(b) Vectris shall cooperate with Halcyon in connection with the defense, resolution, or dismissal of the DOJ Action (Case No. 1:23-cv-03187, D.D.C.), to the extent reasonably requested by Halcyon, including by making available relevant documents and personnel for interviews and testimony; provided, however, that (i) all out-of-pocket costs and expenses incurred by Vectris in connection with such cooperation shall be borne by Halcyon, (ii) such cooperation shall not unreasonably interfere with Vectris's business operations, and (iii) nothing in this Section 3.3(b) shall require Vectris to waive any privilege or protection, including the attorney-client privilege, the work product doctrine, or any other applicable privilege.
(c) The Parties shall cooperate in good faith with respect to any other ongoing or future governmental inquiries, investigations, or proceedings arising from or relating to the proposed Merger, including any requests for information from the FTC, the DOJ, the European Commission, or any other governmental authority.
ARTICLE IV
MUTUAL RELEASE
Section 4.1 Release by Halcyon and Merger Sub.
(a) Effective as of the Effective Date, Halcyon and Merger Sub, on behalf of themselves and each of their respective affiliates, subsidiaries, parent companies, successors, assigns, officers, directors (including, in the case of Halcyon, the members of the Vorstand and the Aufsichtsrat), employees, agents, attorneys, advisors, and representatives (collectively, the "Halcyon Releasors"), hereby irrevocably and unconditionally release, acquit, and forever discharge Vectris and each of its affiliates, subsidiaries, officers, directors (including, without limitation, Dr. Anand Raghavan, Margaret Sørensen, Julian Tate, Rebecca Lau, David Kwon, Dr. Elena Mirescu, Rhys Calloway, and Simone Achterberg), employees, stockholders, agents, attorneys, advisors (including, without limitation, Whitfield, Prager & Loomis LLP and Clearwater Zanthor & Co., LLC), and representatives, and each of their respective heirs, executors, administrators, successors, and assigns (collectively, the "Vectris Releasees"), from any and all claims, counterclaims, cross-claims, demands, actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, covenants, contracts, controversies, agreements, promises, damages, judgments, executions, losses, liabilities, costs, expenses (including attorneys' fees), and obligations of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, fixed or contingent, matured or unmatured, accrued or not yet accrued, liquidated or unliquidated, at law, in equity, or otherwise, that the Halcyon Releasors now have, have had at any time prior to the Effective Date, or may have in the future, against any of the Vectris Releasees, in each case arising out of, relating to, or in connection with the Merger Agreement, the Ancillary Agreements, the transactions contemplated thereby, the negotiation, execution, performance, or termination thereof, or any act or omission of any Vectris Releasee in connection therewith (collectively, the "Released Claims").
(b) Notwithstanding the foregoing, the release set forth in this Section 4.1 shall not extend to, and shall not release, discharge, or otherwise affect:
(i) the Surviving Obligations as identified in Section 3.1 hereof;
(ii) any obligations arising under or pursuant to this Agreement; or
(iii) any claims arising from fraud or willful and material breach of the Merger Agreement occurring prior to the Effective Date.
Section 4.2 Release by Vectris.
(a) Effective as of the Effective Date, Vectris, on behalf of itself and each of its affiliates, subsidiaries, successors, assigns, officers, directors, employees, stockholders, agents, attorneys, advisors, and representatives, and each of their respective heirs, executors, administrators, successors, and assigns (collectively, the "Vectris Releasors"), hereby irrevocably and unconditionally releases, acquits, and forever discharges Halcyon, Merger Sub, and each of their respective affiliates, subsidiaries, parent companies, officers, directors (including, without limitation, Dr. Katarina Breuer, Markus Ellinger, Dr. Luisa Hartmann, and Prof. Dr. Friedrich Wendt), employees, agents, attorneys, advisors (including, without limitation, Calderwood & Harkness LLP and Ridgeline Partners LLC), and representatives, and each of their respective heirs, executors, administrators, successors, and assigns (collectively, the "Halcyon Releasees"), from any and all Released Claims that the Vectris Releasors now have, have had at any time prior to the Effective Date, or may have in the future, against any of the Halcyon Releasees.
(b) Notwithstanding the foregoing, the release set forth in this Section 4.2 shall not extend to, and shall not release, discharge, or otherwise affect:
(i) the Surviving Obligations as identified in Section 3.1 hereof;
(ii) any obligations arising under or pursuant to this Agreement (including, without limitation, the obligation to pay the Reverse Break-Up Fee as set forth in Article V); or
(iii) any claims arising from fraud or willful and material breach of the Merger Agreement occurring prior to the Effective Date.
Section 4.3 Waiver of Unknown Claims.
(a) Each Party acknowledges that it may discover facts in addition to or different from those it now knows or believes to be true with respect to the subject matter of the Released Claims, and each Party agrees that this release shall be and remain in full force and effect in all respects notwithstanding such discovery or the existence of any such different or additional facts. Each Party hereby assumes the risk of any mistake in the execution of this release, and agrees that this release is intended to be final and binding regardless of any claims of misrepresentation, promise made without the intent to perform, concealment of fact, mistake of fact or law, or any other circumstance whatsoever.
(b) Each Party hereby expressly waives, releases, and relinquishes any and all rights and benefits that it may have under Section 1542 of the California Civil Code (or any analogous provision of the law of any other state or jurisdiction), which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
Each Party acknowledges that it has been advised by legal counsel of the significance and consequences of this specific waiver and that it understands and has considered the implications of such waiver. Each Party further acknowledges that this waiver is an essential and material term of this Agreement and that, without such waiver, this Agreement would not have been entered into.
Section 4.4 No Admission.
This Agreement, including the mutual releases set forth in this Article IV, does not constitute and shall not be construed or deemed to constitute an admission of liability, wrongdoing, fault, or responsibility by any Party, or by any Halcyon Releasee or Vectris Releasee, with respect to any matter released or addressed herein. Each Party expressly denies any liability, wrongdoing, or fault, and enters into this Agreement solely to avoid the costs, burdens, and uncertainties of litigation and to achieve a prompt and orderly unwinding of the transactions contemplated by the Merger Agreement.
ARTICLE V
REVERSE BREAK-UP FEE
Section 5.1 Payment Obligation.
(a) In accordance with Section 8.3(b) of the Merger Agreement and as contemplated by Recital E, Halcyon shall pay to Vectris the Reverse Break-Up Fee in the amount of Twenty-Eight Million Dollars ($28,000,000) by wire transfer of immediately available funds in United States dollars to an account designated by Vectris, no later than the Reverse Break-Up Fee Payment Date (December 15, 2023).
(b) Wire transfer instructions for the payment of the Reverse Break-Up Fee shall be delivered by Vectris's outside counsel, Whitfield, Prager & Loomis LLP (attention: Catherine Whitfield), to Halcyon's outside counsel, Calderwood & Harkness LLP (attention: Oliver Mackenzie), no later than December 10, 2023. A placeholder for such wire transfer instructions is attached hereto as Exhibit B. Halcyon shall effect payment strictly in accordance with the wire transfer instructions so provided.
(c) Upon Halcyon's payment of the Reverse Break-Up Fee in full and in accordance with this Section 5.1, Vectris shall promptly deliver to Halcyon a written acknowledgment of receipt of the Reverse Break-Up Fee.
Section 5.2 Sole and Exclusive Remedy.
(a) The Parties acknowledge and agree that the payment of the Reverse Break-Up Fee, together with the mutual releases set forth in Article IV, constitutes the sole and exclusive remedy of Vectris, its affiliates, and the Vectris Releasors against Halcyon, Merger Sub, and their respective affiliates with respect to the termination of the Merger Agreement pursuant to Section 8.1(d) thereof and the failure to consummate the Merger, other than with respect to (i) the Surviving Obligations as set forth in Section 3.1, (ii) the obligations arising under this Agreement, and (iii) claims arising from fraud or willful and material breach of the Merger Agreement occurring prior to the Effective Date.
(b) In no event shall Halcyon or Merger Sub be required to pay to Vectris or any of its affiliates any amount in excess of the Reverse Break-Up Fee in connection with the termination of the Merger Agreement under Section 8.1(d), except as expressly provided in Section 5.3 (relating to interest on late payment) and Section 9.1 (relating to pre-termination breach claims for fraud or willful breach, subject to the limitations therein).
(c) Vectris acknowledges and agrees that, upon receipt of the Reverse Break-Up Fee in accordance with this Article V, it shall have no further claim against Halcyon or Merger Sub for damages, lost profits, consequential damages, diminution in value, or any other monetary or equitable relief arising from the failure to consummate the Merger (other than as expressly set forth in this Agreement).
Section 5.3 Late Payment.
If Halcyon fails to pay the Reverse Break-Up Fee in full by the Reverse Break-Up Fee Payment Date, interest shall accrue on the unpaid amount at a rate per annum equal to the prime rate as published in The Wall Street Journal on the Reverse Break-Up Fee Payment Date (or, if The Wall Street Journal does not publish on such date, on the next succeeding date on which it does publish) plus two percent (2.00%), calculated on the basis of a 365-day year and the actual number of days elapsed, from and including the Reverse Break-Up Fee Payment Date to but not including the date on which payment of the Reverse Break-Up Fee (together with all accrued and unpaid interest thereon) is received by Vectris. Such interest shall be payable simultaneously with the payment of the overdue Reverse Break-Up Fee. The payment of such interest shall not excuse or cure any default by Halcyon under this Agreement.
Section 5.4 Expense Obligations.
(a) Except as otherwise expressly provided in this Agreement, each Party shall bear its own costs, fees, and expenses (including attorneys' fees, accountants' fees, financial advisory fees, and all other professional fees and expenses) incurred in connection with the Merger Agreement, the Ancillary Agreements, the transactions contemplated thereby, the regulatory proceedings described in Recital C, and the negotiation, execution, delivery, and performance of this Agreement, in accordance with Section 8.3(a) of the Merger Agreement.
(b) For the avoidance of doubt, the Reverse Break-Up Fee is not a reimbursement of expenses but a contractual termination payment payable by Halcyon to Vectris as liquidated damages in connection with the termination of the Merger Agreement, and Halcyon's obligation to pay the Reverse Break-Up Fee is independent of, and in addition to, each Party's obligation to bear its own transaction expenses.
ARTICLE VI
DISSOLUTION OF MERGER SUB
Section 6.1 Dissolution of Halcyon Acquisition Sub, Inc.
(a) Halcyon shall cause Halcyon Acquisition Sub, Inc. (Delaware Secretary of State File No. 7634291) to be dissolved and its Certificate of Incorporation to be cancelled in accordance with the provisions of Sections 275 and 276 of the DGCL within sixty (60) days following the Effective Date.
(b) Markus Ellinger, in his capacity as the sole director of Merger Sub, shall execute and file (or cause to be executed and filed) a Certificate of Dissolution with the Secretary of State of the State of Delaware, together with any other documents required under applicable Delaware law to effectuate the dissolution and cancellation of Merger Sub.
(c) The registered agent of Merger Sub, Pinnacle Corporate Services, Inc., located at 1209 Orange Street, Wilmington, Delaware 19801, shall be maintained in place and in good standing until the dissolution of Merger Sub has been completed and the Certificate of Dissolution has been accepted by the Delaware Secretary of State.
(d) Halcyon shall provide Vectris with written confirmation of the completion of the dissolution of Merger Sub, including a copy of the filed Certificate of Dissolution bearing the Delaware Secretary of State's filing stamp, promptly following such completion.
Section 6.2 Tax Matters.
Halcyon shall be solely responsible for the preparation and timely filing of all final federal, state, and local tax returns of Merger Sub (including any short-period returns), and for the payment of any taxes, assessments, or other governmental charges due and owing by Merger Sub in connection with or arising from its formation, existence, or dissolution. Vectris shall have no liability or obligation with respect to any tax matters of Merger Sub.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Mutual Representations.
Each Party hereby represents and warrants to each of the other Parties, as of the Effective Date, as follows:
(a) Organization and Good Standing. Such Party is duly organized, validly existing, and in good standing (or, in the case of Halcyon, in active status with the Munich commercial register) under the laws of its jurisdiction of organization, and has all necessary organizational power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Authority. Such Party has all necessary corporate or other organizational power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, delivery, and performance of this Agreement by such Party have been duly and validly authorized by all necessary corporate or other organizational action on the part of such Party (including, in the case of Halcyon, the approval of the Aufsichtsrat at its meeting held on November 20, 2023, and the authorization of the Vorstand; and in the case of Vectris, the approval of the Board of Directors of Vectris). No other corporate proceedings on the part of such Party are necessary to authorize the execution, delivery, or performance of this Agreement.
(c) Enforceability. This Agreement has been duly and validly executed and delivered by such Party and constitutes a legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting or relating to creditors' rights generally, and (ii) general equitable principles (whether considered in a proceeding at law or in equity).
(d) No Conflict. The execution, delivery, and performance by such Party of this Agreement do not and will not (i) violate, conflict with, or result in a breach of any provision of the certificate of incorporation, bylaws, Satzung, or other comparable organizational documents of such Party, (ii) result in a breach of, or constitute (with or without notice, lapse of time, or both) a default under, or give rise to any right of termination, cancellation, amendment, or acceleration under, any material agreement, contract, indenture, or other instrument to which such Party is a party or by which any of its properties or assets are bound, or (iii) violate any applicable law, statute, regulation, rule, order, judgment, injunction, or decree of any governmental authority applicable to such Party or its properties or assets.
(e) No Litigation. As of the Effective Date, no action, suit, proceeding, investigation, or claim is pending or, to such Party's knowledge, threatened against such Party before any court, arbitrator, or governmental authority that would reasonably be expected to prevent, materially delay, or materially impair the ability of such Party to perform its obligations under this Agreement or to consummate the transactions contemplated hereby, other than the DOJ Action, which is addressed in Section 3.3 of this Agreement.
ARTICLE VIII
ADDITIONAL COVENANTS
Section 8.1 Public Announcements.
(a) No Party shall issue any press release, public announcement, or other public statement relating to the existence or terms of this Agreement, the termination of the Merger Agreement, or any of the transactions contemplated hereby, without the prior written consent of the other Parties (which consent shall not be unreasonably withheld, conditioned, or delayed), except to the extent that such disclosure is required by applicable law, regulation, or the rules of any securities exchange on which the securities of such Party or its affiliates are listed (including the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) and the Nasdaq Global Select Market, as applicable to Halcyon, and the Nasdaq Global Select Market, as applicable to Vectris).
(b) In the event that any Party is required by applicable law, regulation, or stock exchange rules to make any such disclosure, such Party shall, to the extent practicable and permitted by law, provide the other Parties with reasonable advance notice of and the opportunity to review and comment on such disclosure prior to its issuance.
(c) The Parties shall cooperate in good faith in preparing a mutually agreed joint press release announcing the termination of the Merger Agreement and the execution of this Agreement, which joint press release shall be issued promptly following the execution of this Agreement. No Party shall make any public statement that is inconsistent with the mutually agreed joint press release without the prior written consent of the other Parties.
Section 8.2 Non-Disparagement.
(a) Consistent with Section 6.8 of the Merger Agreement, which shall survive as a Surviving Obligation, for a period of two (2) years following the Effective Date (i.e., until November 30, 2025), no Party shall, and each Party shall use commercially reasonable efforts to cause its directors, officers, and authorized spokespersons not to, directly or indirectly, make or cause to be made any public statement, communication, or announcement that disparages, denigrates, or casts in an unfavorable light any other Party, or any director, officer, employee, product, service, or business of any other Party.
(b) The restrictions set forth in Section 8.2(a) shall not apply to:
(i) truthful statements made in connection with any legal, regulatory, arbitration, or governmental proceeding (including the DOJ Action and the European Commission Phase II investigation), including testimony, filings, and submissions;
(ii) statements that a Party is required to make by applicable law, regulation, court order, or governmental directive; and
(iii) confidential communications made by a Party to its own legal, financial, or accounting advisors in connection with the receipt of professional advice, provided that such advisors are bound by duties of confidentiality.
Section 8.3 Regulatory Filings.
(a) Halcyon shall promptly, and in any event within thirty (30) days following the Effective Date, withdraw (or cause to be withdrawn) the Form CO notification (Case M.11247) filed with the European Commission on August 25, 2023, and shall take such other actions as may be necessary or appropriate to terminate the Phase II investigation by the European Commission in connection with the proposed Merger.
(b) The Parties shall cooperate in good faith with respect to any ongoing regulatory proceedings, including the DOJ Action (Case No. 1:23-cv-03187, D.D.C.), and any requests, inquiries, or demands for information from the FTC, the DOJ, the European Commission, or any other governmental authority arising from or relating to the terminated transaction. Such cooperation shall be subject to the terms and conditions set forth in Section 3.3 of this Agreement.
(c) Each Party shall promptly notify the other Parties of any material communication received from any governmental authority relating to the proposed Merger or the regulatory proceedings described in Recital C, to the extent permitted by applicable law.
Section 8.4 Commitment Letter Termination.
Halcyon acknowledges and confirms that it is separately and independently terminating that certain commitment letter, dated as of August 8, 2023 (the "Commitment Letter"), pursuant to which Meridian Atlantic Bank, N.A. (as administrative agent and lead arranger) committed to provide a $500,000,000 senior secured term loan facility to finance a portion of the aggregate merger consideration and related transaction expenses. The termination of the Commitment Letter is Halcyon's sole responsibility, and Vectris shall have no liability or obligation in connection therewith. Halcyon shall bear all breakage fees, commitment fees, and other costs and expenses arising from or relating to the termination of the Commitment Letter.
Section 8.5 Representations and Warranties Insurance.
The Parties acknowledge that the representations and warranties insurance policy that was to be obtained in connection with the Merger, which was to be brokered by Atlas Transactional Insurance Group, Inc. and underwritten by Pinnacle Specialty Underwriters, Ltd. (with a policy limit of $120,000,000), was not bound prior to the closing of the Merger. Accordingly, no such insurance policy is currently in effect, no coverage is available under any such policy, and no premium or other amount is payable by any Party in connection therewith. Each Party hereby releases any claim against the other Parties relating to the procurement, binding, or absence of such insurance policy.
Section 8.6 No Further Solicitation.
Nothing in this Agreement, the Merger Agreement, or any Ancillary Agreement shall be deemed to restrict, limit, or otherwise impair the ability of Vectris to pursue, solicit, negotiate, enter into, or consummate any alternative transaction (including any merger, acquisition, business combination, joint venture, strategic alliance, or sale or disposition of assets or equity interests) following the Effective Date. From and after the Effective Date, Vectris shall be free to engage in discussions and negotiations with, and provide information to, any third party regarding any such alternative transaction, without any obligation to Halcyon or Merger Sub.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Pre-Termination Breach.
(a) Notwithstanding the mutual releases set forth in Article IV and the sole and exclusive remedy provision set forth in Section 5.2, each Party shall remain liable for, and shall indemnify and hold harmless the other Parties and their respective affiliates, officers, directors, employees, agents, and representatives from and against, any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or resulting from fraud or willful and material breach of the Merger Agreement by such Party occurring prior to the Effective Date; provided, however, that such liability shall be subject to the limitations on indemnification set forth in Section 8.3 of the Merger Agreement, including the aggregate indemnification cap of One Hundred Twenty Million Dollars ($120,000,000).
(b) Each Party represents and warrants that, as of the Effective Date and to such Party's knowledge (after reasonable inquiry of its officers and directors with knowledge of the transactions contemplated by the Merger Agreement), there is no claim for pre-termination breach of the Merger Agreement arising from fraud or willful and material breach that has not been disclosed to the other Parties. The Parties acknowledge that this representation is being made for informational purposes and to facilitate the orderly unwinding of the transaction, and that it shall not serve to limit any Party's rights under Section 9.1(a) in the event that facts constituting such a claim are subsequently discovered.
Section 9.2 Indemnification for Third-Party Claims.
(a) Each Party (in such capacity, the "Indemnifying Party") shall indemnify, defend, and hold harmless the other Parties and their respective affiliates, officers, directors, employees, agents, and representatives (each, an "Indemnified Party") from and against any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and expenses) arising out of or resulting from any claim, demand, action, suit, or proceeding brought by any third party (a "Third-Party Claim") relating to the Indemnifying Party's own actions or omissions in connection with the proposed Merger or the transactions contemplated by the Merger Agreement, to the extent that such Third-Party Claim does not constitute a Released Claim under Article IV.
(b) The procedures for the defense and resolution of Third-Party Claims, including notice requirements, the right to assume the defense, and consent to settlement, shall be as set forth in Section 8.5 of the Merger Agreement, which procedures are hereby incorporated by reference mutatis mutandis.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Governing Law.
This Agreement and all disputes, claims, or controversies arising out of, relating to, or in connection with this Agreement (including the interpretation, validity, enforceability, or breach thereof) shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 10.2 Jurisdiction; Venue.
(a) Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of (i) the Court of Chancery of the State of Delaware, or (ii) if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware (Complex Commercial Litigation Division), or (iii) if neither of such courts accepts jurisdiction, the United States District Court for the District of Delaware, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby.
(b) Each Party irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, (i) any objection that it may now or hereafter have to the laying of venue of any suit, action, or proceeding in any such court, and (ii) the defense of an inconvenient forum to the maintenance of any such suit, action, or proceeding in any such court.
(c) Each Party agrees that a final judgment in any such suit, action, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.
Section 10.3 Waiver of Jury Trial.
EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF LITIGATION, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.3.
Section 10.4 Notices.
All notices, requests, claims, demands, consents, waivers, and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by hand (with written confirmation of receipt), (b) when sent by email (with confirmation of transmission and no "bounce-back" or similar error notification), or (c) one (1) business day after being sent by a nationally recognized overnight courier service (receipt requested), in each case addressed as follows (or to such other address or email address as a Party may designate in writing from time to time in accordance with this Section 10.4):
If to Halcyon or Merger Sub:
Halcyon Semiconductor Aktiengesellschaft Halcyon-Platz 1 81739 München, Germany
Attention: Dr. Luisa Hartmann, General Counsel
Email: l.hartmann@halcyon-semi.de
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 599 Lexington Avenue, 38th Floor New York, New York 10022
Attention: Oliver Mackenzie
Email: omackenzie@calderwoodharkness.com
If to Vectris:
Vectris Photonics, Inc. 4750 Ridgepoint Drive, Suite 300 San Jose, California 95134
Attention: Rebecca Lau, General Counsel & Corporate Secretary
Email: rlau@vectrisphotonics.com
with a copy (which shall not constitute notice) to:
Whitfield, Prager & Loomis LLP 51 West 52nd Street New York, New York 10019
Attention: Catherine Whitfield
Email: cwhitfield@wpllaw.com
Section 10.5 Entire Agreement.
This Agreement, together with the Surviving Obligations of the Merger Agreement (as identified in Section 3.1 hereof) and the Ancillary Agreements (to the extent expressly surviving in accordance with their terms or the terms of this Agreement), constitutes the entire agreement among the Parties with respect to the subject matter hereof and thereof, and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, negotiations, and discussions among the Parties, whether oral or written, with respect to such subject matter. No Party has relied on any statement, representation, warranty, or agreement of any other Party except as expressly set forth in this Agreement, the Merger Agreement (with respect to the Surviving Obligations), or the Ancillary Agreements (to the extent surviving).
Section 10.6 Amendment and Waiver.
(a) This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by all Parties.
(b) No waiver by any Party of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party granting such waiver. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have.
Section 10.7 Severability.
If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, void, illegal, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, void, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Section 10.8 Successors and Assigns.
(a) This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
(b) No Party may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of each of the other Parties, and any purported assignment, delegation, or transfer without such consent shall be null and void.
Section 10.9 Third-Party Beneficiaries.
(a) This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns. Except as expressly provided in Section 10.9(b), nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity other than the Parties any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(b) Notwithstanding the foregoing, the persons and entities identified as Halcyon Releasees (in Section 4.2) and Vectris Releasees (in Section 4.1) are intended third-party beneficiaries of the mutual release provisions set forth in Article IV and shall be entitled to enforce such provisions as if they were parties to this Agreement.
Section 10.10 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by electronic mail in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document (including DocuSign, Ashford Health IT, or any other electronic signature platform complying with the U.S. ESIGN Act of 2000 and the Uniform Electronic Transactions Act), shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 10.11 Specific Performance.
(a) The Parties acknowledge and agree that irreparable damage would occur if any of the provisions of this Agreement (including the Surviving Obligations and the obligation to pay the Reverse Break-Up Fee) were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor.
(b) Each Party shall be entitled to seek an injunction, specific performance, or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including the obligation to pay the Reverse Break-Up Fee as set forth in Article V and the Surviving Obligations as set forth in Section 3.1), in addition to any other remedy to which such Party may be entitled at law or in equity, without the necessity of proving actual damages or posting any bond or other security.
Section 10.12 Fees and Expenses.
Except as otherwise expressly provided in this Agreement (including Section 3.3(b) and Section 5.4), each Party shall bear its own attorneys' fees, costs, and expenses incurred in connection with the negotiation, preparation, execution, delivery, and performance of this Agreement.
[Remainder of this page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, the Parties have caused this Termination Agreement and Mutual Release to be executed as of the date first written above by their respective duly authorized officers.
HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT
By: ________
Name: Dr. Katarina Breuer
Title: Chief Executive Officer (Vorstand)
By: ________
Name: Markus Ellinger
Title: Chief Financial Officer (Vorstand)
HALCYON ACQUISITION SUB, INC.
By: ________
Name: Markus Ellinger
Title: Sole Director
VECTRIS PHOTONICS, INC.
By: ________
Name: Dr. Anand Raghavan
Title: Chief Executive Officer
By: ________
Name: Rebecca Lau
Title: General Counsel & Corporate Secretary
EXHIBIT A
NOTICE OF TERMINATION
(Reference Copy)
November 30, 2023
VIA EMAIL AND OVERNIGHT COURIER
Vectris Photonics, Inc. 4750 Ridgepoint Drive, Suite 300 San Jose, California 95134
Attention: Rebecca Lau, General Counsel & Corporate Secretary
Re: Notice of Termination of Agreement and Plan of Merger, dated August 10, 2023, by and among Halcyon Semiconductor Aktiengesellschaft, Halcyon Acquisition Sub, Inc., and Vectris Photonics, Inc.
Dear Ms. Lau:
Reference is made to that certain Agreement and Plan of Merger, dated as of August 10, 2023 (the "Merger Agreement"), by and among Halcyon Semiconductor Aktiengesellschaft, an Aktiengesellschaft organized under the laws of the Federal Republic of Germany ("Halcyon"), Halcyon Acquisition Sub, Inc., a Delaware corporation and wholly owned subsidiary of Halcyon ("Merger Sub"), and Vectris Photonics, Inc., a Delaware corporation (the "Company"). Capitalized terms used but not defined in this notice shall have the meanings ascribed to such terms in the Merger Agreement.
Pursuant to Section 8.1(d) of the Merger Agreement, Halcyon hereby delivers this Notice of Termination to the Company, effective as of the date hereof.
As you are aware, on October 30, 2023, the Antitrust Division of the United States Department of Justice (the "DOJ") filed a civil antitrust complaint in the United States District Court for the District of Columbia, captioned United States of America v. Halcyon Semiconductor Aktiengesellschaft and Vectris Photonics, Inc., Case No. 1:23-cv-03187 (D.D.C.) (the "DOJ Action"), seeking to e